Nepotism-Opposed Cop May Prove Retaliation

CHICAGO (CN) – A cop who was fired for complaining about letting a local politician’s child slide on a traffic ticket can pursue retaliation claims, the 7th Circuit ruled. Officer David Kristofek says he was patrolling Orland Hills, Ill., on Nov. 12, 2010, when he an automobile operating on a suspended registration. He pulled the vehicle over and wrote two tickets when the driver failed to produce proof of valid insurance. During the stop, the driver, whose name is not given in the ruling, reported that his mother was a former mayor of a nearby town. Kristofek spoke with that mother on the cellphone of the driver’s girlfriend, and the former mayor allegedly asked Kristofek not to arrest her son. Kristofek said he explained that he was bound by department policy to arrested the driver and have his vehicle towed. At the station Kristofek was entering the booking information into the computer when other officers allegedly told him to stop and give all of the paperwork to the deputy chief. Kristofek claimed that he was also told to delete any information about the driver already entered in the computer system. He said the deputy chief swore at him when he questioned the orders. Concerned that “the unequal application of the law due to political considerations was improper and possibl[y] illegal,” Kristofek allegedly complained to other officers. After consulting with an attorney, Kristofek then reported the incident to the FBI as “possible political corruption in the Orland Hills Police Department and/or Village of Orland Hills.” Kristofek told the FBI that he was unsure whether the order to release the driver came from the department or mayor’s office. When Police Chief Thomas Scully heard about the FBI investigation in April 2011, he allegedly offered Kristofek the option to resign or be fired. When Kristofek refused to resign, he was terminated on the spot. Kristofek sued Scully and the village of Orland Hills, claiming that he had been fired in retaliation for exercising his First Amendment rights. The complaint stated that his statements to other officers and the FBI were made in his capacity as a citizen “contesting the unequal application of the laws to its citizens.” Kristofek also brought claims under the Illinois Whistleblower Act. Finding that Kristofek’s speech did not involve matters of public concern, U.S. District Judge Samuel Der-Yeghiayan dismissed the complaint. Kristofek’s statements were motivated by his self-interested fear of prosecution rather than by a desire to address a public concern in his capacity as a private citizen, Der-Yeghiayan reasoned. The statements were thus not entitled to First Amendment protection. But the 7th Circuit reinstated Kristofek’s claims Monday, ruling that his speech involved a matter of public concern regardless of his motives. “The mere fact that Kristofek was motivated by his self-interest does not make it implausible that he was also motivated to help the public,” Judge Ann Claire Williams wrote for a three-member panel. “Any reasonable person would understand that a report to the FBI could potentially result in widespread changes to police practices in Orland Hills. … Because it is plausible that Kristofek’s motives were mixed, Orland Hills’s sole argument on appeal fails. We may reverse on that basis alone.” Even if self-interest represented Kristofek’s sole motivation, he may still have had a viable First Amendment claim, according to the ruling. “As we have stated before, motive alone does not conclusively determine whether a public employee’s speech involves a matter of public concern,” Williams wrote. “The marketplace of ideas would become quite impoverished indeed if anyone (including public employees) motivated solely by his or her own self-interest were precluded from participating in it,” she added. Williams stressed that motive is relevant to determining whether speech is a matter of public concern, but is not dispositive. “If the objective of the speech – as determined by content, form, and context – is simply to further a purely personalized grievance, then the speech does not involve a matter of public concern. … But if an objective of the speech was also to bring about change with public ramifications extending beyond the personal, then the speech does involve a matter of public concern.” The 7th Circuit also revived Kristofek’s Monell claims against Police Chief Scully. Under Monell v. New York City Department of Social Services, a municipality may be liable if “an individual with final policymaking authority for the municipality (on the subject in question) caused the constitutional deprivation.” The appellate panel found that “Kristofek has stated, albeit barely, a plausible claim that Scully had at least de facto authority to set policy for hiring and firing.” “By firing Kristofek and escorting him out of the building in front of his co-workers, many of whom were well aware of Kristofek’s speech, Scully made it clear to his staff that anyone else who complained about the November 2010 incident (or any other incident involving political favoritism) would meet a similar fate,” Williams wrote (parentheses in original). Two other officers involved with the traffic ticket incident have since left the force, though it is not clear whether the political favoritism alleged by Kristofek played a role there as well. The 7th Circuit remanded the case to Judge Der-Yeghiayan for further proceedings.